09 Aug To Burgle or Not To Burgle
At common law burglary was the trespassory, breaking and entering of the dwelling house of another, at night, with the intent to commit a felony therein. Knowing the differences between common law burglary and modern majority will get you a great score, but knowing the subtle applications of these differences can land you extra points.
The Breaking
At common law the breaking required more than a mere pushing open of a door or sliding of a window that was already slightly open. Modernly, the breaking statue has been relaxed to allow for even the slighted opening and some jurisdictions have eliminated the breaking requirement altogether. One small issue to keep in mind with the breaking requirement is the constructive breaking. Under both common law and modern majority a constructive breaking can be found where the defendant gains entry through fraud, deception or threat of force. This is a nice little nugget to keep in the back of your head for extra points on an essay analysis.
Let’s see this in action:
Al arranged with Bob to have Bob kill Vic by shooting him. Bob, in turn, paid Tom to do the killing. Tom went to Vic’s home late one evening. Vic had gone to bed and had left his bedroom window open. Tom found a long stick and set fire to the end of it. He inserted the stick through the open bedroom window and started a smoldering fire in the covering on Vic’s bed. Vic died of smoke inhalation, but the fire was discovered and extinguished by Vic’s son. The only damage to the home was smoke discoloration to the walls next to the bed.
Is Tom guilty of common law burglary of Vic’s house?
(A) Yes, because he committed a felony within the home of another during the nighttime.
(B) Yes, because he inserted the· lighted stick through the open window.
(C) No, because he did not commit a breaking.
(D) No, because no part of his body entered the house.
See below for answer.
Do something that pushes your boundaries, something that you wouldn’t ordinarily do. Take a calculated risk and allow yourself to crumble a little.
The Entry
In order to satisfy the element of the entry some part of the defendant must typically enter the premises. However, as we saw above in the fact pattern, criminals are sneaky, therefore, if a tool or instrument is used to enter and commit the target felony (not just gain entry) then this qualifies as a breaking and entry. Keep in mind that the breaking and entering must have a causal relation. This means that the breaking action must casual relate to the entering action.
A thief targets a house through the letterbox. Picture: comp
The Trespass
Both the breaking and the entering must be done without consent, they must be a trespass. This means that if it is your home or if it is the home of someone living in the home and they satisfy all the elements of breaking and entering they can never have committed the trespassory element because they cannot trespass on their own land. However, if it is a workplace and an employee has permission to enter certain areas of the business and no permission to enter others and does so they no longer have consent to enter those areas and their entry is a trespass.
The (An)Other
As was stated above in the trespass element, one may not burglarize his own dwelling as there is no trespass.
The Night